NFL’s diversity advisory committee includes…

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The various announcements the NFL made on Monday included the unveiling of the members of it discovery advisory committee. The group includes two practicing lawyers.

Both work for firms that exclusively represent the interests of employers in litigation brought by employees.

One is Peter Harvey, who practices with Patterson Belknap. Here’s the first line of the firm’s description of its relevant practice: “Patterson Belknap’s Employment Group protects employers’ interests through litigation, sensitive internal investigations, and counseling designed to help organizations achieve their business goals while minimizing legal, compliance and reputational risk.”

The other is Patricia Brown Holmes. She’s the managing partner of Riley Safer Holmes & Cancila. Like Patterson Belknap, Holmes’s firm represents employers in litigation involving employees.

Working with Loretta Lynch, who has been hired to represent the NFL in the case of race discrimination brought by former Dolphins coach Brian Flores, Holmes recently defended McDonald’s in a discrimination case brought by Black franchisees who claimed that their white counterparts received preferential treatment. A federal court dismissed a class action making such claims in June 2021. In December 2021, McDonald’s settled multiple race discrimination cases filed by Black franchise owners by buying back their stores.

The addition of Harvey and Holmes to the diversity advisory committee — and the omission of any lawyers skilled and experienced in representing victims of discrimination — suggest that their involvement is more about getting advice on how to properly position the NFL against legal challenges and less about figuring out the right thing to do and doing it. Wouldn’t it make sense to get input not only from lawyers who devote their careers to protecting corporate coffers from discrimination cases but also from lawyers who know the signs and symptoms of a business that is being dragged down by policies and practices and attitudes that are discriminatory or non-inclusive?

When I practiced law, I worked initially for several years on one side of that equation (representing employers) and for a decade on the other (representing employees). It’s an important philosophical choice. Either you choose to defend the corporate client against all claims brought (even those with real merit) or you choose to advocate for the individuals who believe their rights have been violated. There’s little, if any, middle ground. To truly embrace diversity and welcome change in employment practices, it’s critical to involve those who focus their practices on busting through the predictable denials of discrimination and exposing the deeper evidence that shows bias in action.

Instead, the lawyers on the NFL’s diversity advisory committee undoubtedly will largely if not exclusively be advising the NFL not on how to avoid having bias infect its decisions, but on how to avoid getting sued when it happens.